Relates to offenses involving sexual performances by a child

Summary of provisions

Section one amends the Penal Law by adding a new section 263.09 to create the crime of promoting an obscene sexual performance by a child in the first degree as a Class C felony when an individual produces, directs or promotes twenty-five (25) or more obscene performances involving a child less than seventeen years of age.

Section two amends section 263.10 of the Penal Law to create the crime of promoting an obscene sexual performance by a child in the second degree as a class D felony when an individual produces, directs or promotes obscene performances involving a child less than seventeen years of age.

Section three amends section 263.11 of the Penal Law creating the crime of possessing an obscene sexual performance by a child in the third degree as a class E felony when an individual knowingly possesses or has in their control any obscene performance including sexual conduct involving a child less than sixteen years of age.

Section four amends the Penal Law adding three new sections, 263.12, 263.13 and 263.14 to create the crime of possessing an obscene sexual performance by a child in the second degree when the individual knowingly possesses or controls twenty-five (25) or more obscene performances involving a child less than sixteen. This is a class D felony.

Possessing an obscene sexual performance by a child in the first degree is added to include knowingly possessing or controlling two-hundred fifty (250) or more sexual performances involving a child less than sixteen. This is a class C felony.

Section five amends Section 263.15 of the Penal Law creating a crime of promoting a sexual performance by a child in the second degree when knowing the character and content, an individual produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen. This is a class D felony.

Section six amends the Penal Law section 263.16, also section six adds sections 263.17 and 263.18 to the Penal Law. Possessing a sexual performance by a child in the third degree is a class E felony. Possessing a sexual performance by a child in the second degree is a class D felony when an individual possesses twenty-five (25) or more performances including sexual conduct of a child less than sixteen. Possessing a sexual performance by a child in the first degree is a class C felony when a person possesses two hundred fifty (250) or more performances involving a child less than sixteen.

Section seven amends section 263.20 of the Penal Law.

Section eight amends paragraph (d) of subdivision 7 of section 995 of the Executive Law.

Section nine amends subdivisions 1 and 2 of section 263.00 of the Penal Law.

Section ten amends paragraph (a) of subdivision 1 of section 460.10 of the Penal Law.

Section eleven amends paragraph (b) of subdivision 4 of section 509-cc of the Vehicle and Traffic Law.

Section twelve sets forth the effective date, on the one hundred eightieth day after it shall have become law.

Justification

This bill responds to the increasing misuse of the internet as a medium for the sexual exploitation and abuse of children. A recent study by the National Center for Missing and Exploited Children reports that 1 in 4 children were subjected to unwanted exposure to pictures of nude individuals or people having sex on the internet. Child pornography is a particular threat, as it not only victimizes the children used in the production or pictures, but creates a ripple effect in the victimization of further children. Child abuse experts have documented the common tendency of pedophiles to lower potential victims' inhibitions by exposing them to images of other children engaging in sexual activity.

No level of child pornography is harmless and the current statutory scheme reflects that insight. However, the unintended consequence of a "one size fits all" statutory scheme lends itself to unwarranted leniency for child pornographers overall. The high-volume dealer may escape criminal liability proportionate to the crime, both through a low top felony count and through the frequent conflation of multiple counts at sentencing.

A statutory amendment to provide for graded child pornography offenses is urgently required to assist law enforcement in the face of evolving technology. Over the past decade, explosive growth in disk

storage capacity has facilitated the development of massive collections of child pornography, while evolving internet communication technology has enabled collection owners to organize sophisticated trade or profit-based mechanisms for distribution.

A graduated scheme of child pornography offenses is consistent with other New York statutes governing the distribution and possession of contraband. In the area of narcotics and possession of stolen property, for example, the state statutes are graded to reflect the insight that kingpins and mid-level operatives generally pose a greater threat to society than street-level criminals.

A graduated scheme of state statutes governing child pornography would also be in harmony with the effect of federal procedures in this area. Federal sentencing procedure in the field of child pornography approximates the effect of a graded statutory scheme via sentencing enhancements applied, for example, to the possession of greater than ten images of child pornography.

Legislative history

2007-2008: S.1086A - Passed Senate. 2005-2006: S.7352A - Passed Senate.

Fiscal implications

None.

Effective date

The first of November next succeeding the date on which it shall have become a law.